FREEDOM OF INFORMATION AMENDMENT (REFORM) ACT 2010 (NO. 51, 2010) - SCHEDULE 4 Information Commissioner amendments

FREEDOM OF INFORMATION AMENDMENT (REFORM) ACT 2010 (NO. 51, 2010) - SCHEDULE 4

Information Commissioner amendments

Part 1 -- Main amendments

Freedom of Information Act 1982

1 Subsection 4(1)

Insert:

"access grant decision" has the meaning given by section 53B.

2 Subsection 4(1)

Insert:

"access refusal decision" has the meaning given by section 53A.

3 Subsection 4(1)

Insert:

"action" , if the action is taken by a person or agency, has the same meaning as in the Ombudsman Act 1976 .

Note: See subsections 3(2) to (7) of the Ombudsman Act 1976 .

4 Subsection 4(1)

Insert:

"affected third party" has the meaning given by section 53C.

5 Subsection 4(1)

Insert:

"authorised person" has the meaning given by section 77.

6 Subsection 4(1)

Insert:

"complainant" has the meaning given by subsection 70(1).

7 Subsection 4(1)

Insert:

"engage in conduct" means:

(a) do an act; or

(b) omit to do an act.

8 Subsection 4(1)

Insert:

"IC review" has the meaning given by section 54G.

9 Subsection 4(1)

Insert:

"IC reviewable decision" has the meaning given by section 54K.

10 Subsection 4(1)

Insert:

"IC review applicant" has the meaning given by section 54J.

11 Subsection 4(1)

Insert:

"IC review application" has the meaning given by section 54H.

12 Subsection 4(1)

Insert:

"implementation notice" has the meaning given by section 89.

13 Subsection 4(1)

Insert:

"Information Commissioner" has the meaning given by the Australian Information Commissioner Act 2010 .

14 Subsection 4(1)

Insert:

"internal review" has the meaning given by sections 54 and 54A.

15 Subsection 4(1)

Insert:

"internal review applicant" has the meaning given by section 54B.

16 Subsection 4(1)

Insert:

"investigation recommendations" has the meaning given by section 88.

17 Subsection 4(1)

Insert:

"investigation results" has the meaning given by section 87.

18 Subsection 4(1)

Insert:

"respondent agency" has the meaning given by subsections 69(2) and 70(2).

19 Subsection 4(1)

Insert:

"review parties" has the meaning given by section 55A.

20 Subsection 4(1)

Insert:

"vexatious applicant declaration" has the meaning given by section 89K.

21 Subsection 12(1)

Omit "(1)".

22 Subsections 12(2) to (4)

Repeal the subsections.

23 Subsection 21(3)

Repeal the subsection.

24 Subparagraph 26(1)(c)(ii)

Omit "Ombudsman", substitute "Information Commissioner".

25 Paragraph 26(1)(c)

Omit "review under section 54", substitute "internal review (Part VI) and IC review (Part VII)".

26 Paragraph 29(9)(b)

Omit "Ombudsman", substitute "Information Commissioner".

27 Subsection 29(9)

Omit "review under section 54", substitute "internal review (Part VI) and IC review (Part VII)".

28 Section 31

Repeal the section, substitute:

31 Decision to impose charge--extended period for processing request

Scope

(1) This section applies if:

(a) on a particular day (the charge notice day ) an applicant in relation to a request receives a notice under subsection 29(1) or (6) to the effect that the applicant is liable to pay a charge in respect of the request; and

(b) the notice is received before the end of the period (the processing period ) applicable under paragraph 15(5)(b) in relation to the request (or that period as extended).

Processing period to be calculated disregarding period when charge unpaid

(2) In working out the length of the processing period (or that period as extended) for the purposes of paragraph 15(5)(b), disregard the number of days in the period starting on the charge notice day and ending on the earliest occurring of the following days:

(a) the day the applicant pays the amount of the charge (or a deposit on account of the charge prescribed by the regulations), whether or not the decision to impose the charge has been considered under section 29, or is the subject of a review under this Act;

(b) if the amount of the charge is changed under section 29, or following a review under this Act--the day the applicant pays the amount of the charge (or a deposit on account of the charge prescribed by the regulations) as changed following the review;

(c) if, under section 29, or following a review under this Act, a decision is made with the effect that the charge is not imposed--the day the applicant is notified of the decision.

Note: A decision under section 29 relating to the imposition of a charge or the amount of a charge may be the subject of an internal review (see Part VI), an IC review (see Part VII) or review by the Tribunal (see Part VIIA).

29 After section 51D

Insert:

51DA Decision not made on request for amendment or annotation within time--deemed refusal

(1) This section applies if:

(a) an application has been made to an agency or Minister under section 48; and

(b) the period of 30 days mentioned in section 51D (the initial decision period ) has ended since the day the application was received by, or on behalf of, the agency or Minister; and

Deemed refusal

(2) Subject to this section:

(a) the principal officer of the agency or the Minister is taken to have made a decision personally refusing to amend or annotate the record of personal information to which the application relates on the last day of the initial decision period; and

(b) notice of the decision is taken to have been given under section 26 to the applicant on the same day.

Agency or Minister may apply for further time

(3) However, the agency or Minister concerned may apply, in writing, to the Information Commissioner for further time to deal with the application.

(4) The Information Commissioner may allow further time considered appropriate by the Information Commissioner for the agency or Minister to deal with the application.

(5) If the Information Commissioner allows further time, the Information Commissioner may impose any condition that he or she considers appropriate.

(6) Subsection (2) (deemed refusal) does not apply, and is taken never to have applied, if the agency or Minister:

(a) makes a decision on the application within the further time allowed; and

(b) complies with any condition imposed under subsection (5).

(7) However, subsection (2) (deemed refusal) applies as if the initial decision period were extended by the time allowed by the Information Commissioner under subsection (4) if the agency or Minister:

(a) does not make a decision on the request within the further time allowed; or

(b) does not comply with any condition imposed under subsection (5).

No further time allowed

(8) If subsection (7) (deemed refusal after allowance of further time) applies, the Information Commissioner does not have the power to allow further time under this section in relation to the decision taken to be made under subsection (2) in its operation as affected by subsection (7).

30 Part VI (heading)

Repeal the heading, substitute:

Part VI -- Internal review of decisions

31 Before section 53

Insert:

52 Internal review of decisions--guide

This Part provides for internal review of decisions by agencies, other than decisions made personally by the principal officer of an agency or the responsible Minister. Agencies are required to complete internal reviews within 30 days. However, this period may be extended.

Sections 53A, 53B and 53C define the terms access refusal decision , access grant decision and affected third party . These terms are used in this Part and in Parts VII and VIIA.

32 Section 53

Omit "Part", substitute "Act".

33 Section 53

Omit ", 33A, 34 or 35", substitute "or 34".

34 Sections 54 to 57

Repeal the sections, substitute:

53A What is an access refusal decision ?

An access refusal decision is any of the following decisions:

(a) a decision refusing to give access to a document in accordance with a request;

(b) a decision giving access to a document but not giving, in accordance with the request, access to all documents to which the request relates;

(c) a decision purporting to give, in accordance with a request, access to all documents to which the request relates, but not actually giving that access;

(d) a decision to defer the provision of access to a document (other than a document covered by paragraph 21(1)(d) (Parliament should be informed of contents));

(e) a decision under section 29 relating to imposition of a charge or the amount of a charge;

(f) a decision to give access to a document to a qualified person under subsection 47F(5);

(g) a decision refusing to amend a record of personal information in accordance with an application made under section 48;

(h) a decision refusing to annotate a record of personal information in accordance with an application made under section 48.

Note: If a decision is not made on a request under section 15 within the time required by that section, a decision is taken to have been made to refuse to give access to a document in accordance with the request (see section 15AC).

53B What is an access grant decision ?

An access grant decision is a decision covered by the following table:

Note: The table covers documents that may be conditionally exempt under section 47B (item 1), 47G (item 2) or 47F (items 3 and 4), or exempt under section 47 (item 2). Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A).

Access grant decisions
Item	If, in relation to a request for access to a document ...	*the access grant decision* is ...**
1	consultation with a State under section 26A (documents affecting Commonwealth‑State relations) is required	a decision of an agency or Minister to give the applicant access to the document (or an edited copy of the document) because: (a) the document is not conditionally exempt under section 47B (Commonwealth‑State relations); or (b) access to the document would not, on balance, be contrary to the public interest for the purposes of subsection 11A(5).
2	section 27 (business documents) applies in relation to business information in the document	a decision of an agency or Minister to give access to the document (or an edited copy of the document) because: (a) the document is neither exempt under section 47, nor conditionally exempt under section 47G; or (b) if the document is conditionally exempt under section 47G--access to the document would not, on balance, be contrary to the public interest for the purposes of subsection 11A(5). Note: Section 47 deals with documents disclosing trade secrets or commercially valuable information. Section 47G deals with other business documents.
3	section 27A (documents affecting personal privacy) applies in relation to personal information in the document about a living person	a decision of an agency or Minister to give the applicant access to the document (or an edited copy of the document) because: (a) the document is not conditionally exempt under section 47F (personal privacy); or (b) access to the document would not, on balance, be contrary to the public interest for the purposes of subsection 11A(5).
4	section 27A (documents affecting personal privacy) applies in relation to personal information in the document about a deceased person	a decision of an agency or Minister to give the applicant access to the document (or an edited copy of the document) because: (a) the document is not conditionally exempt under section 47F (personal privacy); or (b) access to the document would not, on balance, be contrary to the public interest for the purposes of subsection 11A(5).

53C Internal review--who is an affected third party ?

The following table has effect:

*Who is an affected third party* ?**
Item	If, in relation to a request for access to a document ...	*the affected third party* for the document is ...**
1	consultation with a State under section 26A (documents affecting Commonwealth‑State relations) is required	the State.
2	section 27 (business documents) applies in relation to business information in the document	the person or organisation concerned (within the meaning of section 27).
3	section 27A (documents affecting personal privacy) applies in relation to personal information in the document about a living person	the person.
4	section 27A (documents affecting personal privacy) applies in relation to personal information in the document about a deceased person	the legal personal representative of the deceased person.

54 Internal review--access refusal decision

(1) This section applies if an access refusal decision is made in relation to a request to an agency for access to a document, other than a decision made personally by the principal officer of the agency or the responsible Minister.

(2) The applicant in relation to the request may apply under this Part for the review (the internal review ) of the access refusal decision.

54A Internal review--access grant decision

(1) This section applies if an access grant decision is made in relation to a request to an agency for access to a document, other than a decision made personally by the principal officer of the agency or the responsible Minister.

(2) The affected third party for the document may apply under this Part for the review (the internal review ) of the access grant decision.

Note: For affected third party , see section 53C.

54B Internal review--application for review

(1) An application for internal review must be in writing and must be made:

(a) within 30 days, or such further period as the agency allows, after the day the decision is notified to the applicant for internal review (the internal review applicant ); or

(b) in the case of an access refusal decision of a kind mentioned in paragraph 53A(b), (c) or (f), within whichever of the following is the longer period:

(i) 30 days, or such further period as the agency allows, after the day the decision is notified to the internal review applicant;

(ii) 15 days after the day the access referred to in that paragraph was given (or purported to be given).

(2) A decision by an agency to allow a further period for making an application may be made whether or not the time for making such an application has already expired.

(3) The agency's power to allow a further period for making an application may be exercised by an officer of the agency who is:

(a) acting within the scope of authority exercisable by him or her; and

(b) acting in accordance with arrangements approved by the responsible Minister or principal officer of the agency.

54C Internal review--decision on internal review

Scope

(1) This section applies if an application for internal review of an access refusal decision or an access grant decision (the original decision ) is made in accordance with this Part.

Decision

(2) The agency must, as soon as practicable, arrange for a person (other than the person who made the original decision) to review the decision.

(3) The person must make a fresh decision on behalf of the agency within 30 days after the day on which the application was received by, or on behalf of, the agency.

Notice of decision

(4) Section 26 extends to a decision made under this section.

54D Internal review--deemed affirmation of original decision

(1) This section applies if:

(a) an application for internal review has been made to an agency; and

(b) the period (the initial decision period ) of 30 days (as mentioned in subsection 54C(3)) has ended since the day the application for internal review was received by the agency; and

(2) Subject to this section:

(a) the principal officer of the agency is taken to have made a decision personally affirming the original decision on the last day of the initial decision period; and

(b) notice of the decision is taken to have been given under section 26 to the internal review applicant on the same day.

Agency may apply for further time

(3) However, the agency may apply, in writing, to the Information Commissioner for further time to deal with the application.

(4) The Information Commissioner may allow further time considered appropriate by the Information Commissioner for the agency to deal with the application.

(5) If the Information Commissioner allows further time the Information Commissioner may impose any condition that he or she considers appropriate.

(6) Subsection (2) (deemed affirmation) does not apply, and is taken never to have applied, if the agency:

(a) makes a decision on the application within the further time allowed; and

(b) complies with any condition imposed under subsection (5).

(7) However, subsection (2) (deemed affirmation) applies as if the initial decision period were extended by the time allowed by the Information Commissioner under subsection (4) if the agency:

(a) does not make a decision on the request within the further time allowed; or

(b) does not comply with any condition imposed under subsection (5).

No further time allowed

(8) If subsection (7) (deemed affirmation after allowance of further time) applies, the Information Commissioner does not have the power to allow further time under this section in relation to the decision taken to be made under subsection (2) in its operation as affected by subsection (7).

54E Internal review--decisions to which this Part does not apply

This Part does not apply in relation to:

(a) a decision on internal review; or

(b) a decision in relation to the provision of access to a document upon a request that is taken to have been made under section 15AC or 51DA.

Part VII -- Review by Information Commissioner

Division 1 -- Guide to this Part

54F Review by the Information Commissioner--guide

This Part sets up a system for review of decisions by the Information Commissioner.

Division 2 sets out the key concepts for the Part.

Division 3 sets out the types of decisions that are reviewable.

Division 4 provides for the making of applications for review by the Information Commissioner, including the time limits within which applications must be made.

The Information Commissioner may make preliminary inquiries before deciding whether or not to conduct a review. In certain circumstances, the Information Commissioner may decide not to review a decision (or a part of a decision) (see Division 5).

Division 6 provides for the procedure in an IC review, including the parties to the proceeding, circumstances in which a hearing may be held and who bears the onus of proof.

The Information Commissioner may refer questions of law to the Federal Court of Australia at any time during the review.

The Information Commissioner must make a decision on the review in accordance with Division 7.

The Information Commissioner has powers to gather information for the purposes of an IC review (see Division 8).

In certain circumstances, the Inspector‑General of Intelligence and Security must be called to give evidence (see Division 9).

An application for review of a decision of the Information Commissioner may be made to the Administrative Appeals Tribunal. A review party may appeal to the Federal Court of Australia, on a question of law, from a decision of the Information Commissioner (see Division 10).

Division 2 -- Key concepts

54G Key concepts--what is an IC review ?

An IC review is a review of an IC reviewable decision undertaken by the Information Commissioner under this Part.

Note: IC review is short for Information Commissioner review.

54H Key concepts--what is an IC review application ?

An IC review application is an application made under Division 4 for the review of an IC reviewable decision.

Note: IC review application is short for Information Commissioner review application.

54J Key concepts--who is an IC review applicant ?

An IC review applicant is a person who applies for an IC review under section 54L or 54M.

Note: IC review applicant is short for Information Commissioner review applicant.

54K Key concepts--what is an IC reviewable decision ?

An IC reviewable decision is:

(a) a decision covered by subsection 54L(2) (access refusal decisions); or

(b) a decision covered by subsection 54M(2) (access grant decisions).

Note: IC reviewable decision is short for Information Commissioner reviewable decision.

Division 3 -- IC reviewable decisions

54L IC reviewable decisions--access refusal decisions

(1) An application may be made to the Information Commissioner for a review of a decision covered by subsection (2).

(2) This subsection covers the following decisions:

(a) an access refusal decision;

(b) a decision made by an agency on internal review of an access refusal decision (see section 54C);

(c) a decision refusing to allow a further period for making an application for internal review of an access refusal decision (under section 54B).

Note 1: An application for the review of an access refusal decision made for the purposes of paragraph (a) may be made regardless of whether the decision was the subject of internal review.

Note 2: If no decision is made on internal review within 30 days, a decision to affirm the original access refusal decision is taken to have been made (see section 54D).

(3) The IC review application may be made by, or on behalf of, the person who made the request to which the decision relates.

54M IC reviewable decisions--access grant decisions

(1) An application may be made to the Information Commissioner for a review of a decision covered by subsection (2).

(2) This subsection covers the following decisions:

(a) an access grant decision;

(b) a decision made by an agency on internal review of an access grant decision (see section 54C).

Note: If no decision is made on internal review within 30 days, a decision to affirm the original access grant decision is taken to have been made (see section 54D).

(3) The IC review application may be made by, or on behalf of, the following:

(a) in any case--an affected third party for the document in relation to which the decision covered by subsection (2) was made;

(b) in a case covered by paragraph (2)(b)--the person who made the request to which the decision relates.

Note: For affected third party , see section 53C.

Division 4 -- IC review applications

Subdivision A -- Making an application

54N IC review applications--application

Content of application

(1) An IC review application must be in writing, and must:

(a) give details of how notices under this Part may be sent to the IC review applicant (for example, by providing an electronic address to which notices may be sent by electronic communication); and

(b) include a copy of the notice given under section 26 of the IC reviewable decision for which an IC review is sought.

Note: For who may make an IC review application, see sections 54L and 54M.

(2) The IC review application may contain particulars of the basis on which the IC review applicant disputes the IC reviewable decision.

(3) The Office of the Australian Information Commissioner must provide appropriate assistance to a person who:

(a) wishes to make an IC review application; and

(b) requires assistance to prepare the IC review application.

Delivery of application

(4) The IC review application must be sent to the Information Commissioner. The IC review application may be sent in any of the following ways:

(a) delivery to the Information Commissioner at the address of the Information Commissioner specified in a current telephone directory;

(b) postage by pre‑paid post to an address mentioned in paragraph (a);

54P IC review applications--requirement to notify affected third parties

Scope

(1) This section applies if:

(a) an agency or Minister decides not to give access to a document to which a consultation requirement applies under section 26A, 27 or 27A; and

(b) an IC review application is made for an IC review of that decision.

Requirement to notify

(2) The agency or Minister must, as soon as practicable, take all reasonable steps to notify the affected third party for the document of the application.

Note 1: For affected third party , see section 53C.

Note 2: The agency or Minister is not required to give notice if the Information Commissioner orders that it is not appropriate to do so in the circumstances (see section 54Q).

(3) The agency or Minister must, as soon as practicable, give a copy of the notice to the Information Commissioner.

54Q IC review applications--circumstances in which not giving notice is appropriate

(1) This section applies in relation to a document to which a consultation requirement applies under section 27 or 27A.

(2) An agency or Minister is not required to notify an affected third party for the document under subsection 54P(2) if:

(a) the agency or the Minister applies to the Information Commissioner for an order that it would not be appropriate to notify the affected third party in the circumstances covered by subsection (3); and

(b) the Information Commissioner makes the order.

Note: For affected third party , see section 53C.

(3) The circumstances covered by this subsection are whether notifying the affected third party would, or could reasonably be expected to, do any of the following:

(a) prejudice the conduct of an investigation of a breach, or possible breach, of the law, or a failure, or possible failure, to comply with a law relating to taxation;

(b) prejudice the enforcement or proper administration of the law in a particular instance;

(c) disclose, or enable a person to ascertain, the existence or identity of a confidential source of information, or the non‑existence of a confidential source of information, in relation to the enforcement or administration of the law;

(d) endanger the life or physical safety of any person;

(e) cause damage to the security, defence or international relations of the Commonwealth.

54R IC review applications--withdrawal

(1) An IC review applicant may, in writing, withdraw the IC review application at any time before the Information Commissioner makes a decision under section 55K.

(2) If the IC review application is withdrawn, it is taken never to have been made.

Subdivision B -- Time limits

54S IC review applications--time limits

Access refusal decisions

(1) An IC review application in relation to a decision covered by subsection 54L(2) (access refusal decisions) must be made within 60 days after the day notice of the IC reviewable decision was given under section 26.

Access grant decisions

(2) An IC review application in relation to a decision covered by subsection 54M(2) (access grant decisions) must be made within 30 days after:

(a) if a decision is made on internal review of the decision--the day notice of the decision under section 54C was given to the affected third party for the document in relation to which the decision is made; or

(b) otherwise--the day notice under section 26A, 27 or 27A was given to the affected third party for the document in relation to which the decision was made.

Note: For affected third party , see section 53C.

54T IC review applications--extension of time

Application for extension of time

(1) A person may apply to the Information Commissioner for an extension of time for making an IC review application.

(2) The Information Commissioner may extend the time if the Information Commissioner is satisfied that it is reasonable in all the circumstances to do so.

(3) The time for making an IC review application may be extended under this section although the period mentioned in section 54S has ended.

Requirement to notify

(4) Before determining an application under subsection (1), the Information Commissioner may require the IC review applicant to give notice of the application to a specified person or persons that the Information Commissioner considers is affected by the application.

Person may oppose application

(5) A person to whom notice is given under subsection (4) may notify the Information Commissioner in writing that he or she opposes the application under subsection (1). The person must do so within the time required by the Information Commissioner.

Reasonable opportunity to be heard

(6) If notice is given under subsection (5), the Information Commissioner must give the IC review applicant and the person to whom notice has been given under subsection (4) a reasonable opportunity to present their cases before determining the application under subsection (1).

Division 5 -- Decision to review

54U Decision to review--interpretation

This Division applies to a part of an IC review application as if a reference to an IC review application were a reference to the part of the IC review application.

54V Decision to review--preliminary inquiries

The Information Commissioner may make inquiries of the review parties for the purpose of determining whether or not to undertake an IC review.

54W Decision to review--discretion not to review

The Information Commissioner may decide not to undertake an IC review, or not to continue to undertake an IC review, if:

(a) the Information Commissioner is satisfied of any of the following:

(i) the IC review application is frivolous, vexatious, misconceived, lacking in substance or not made in good faith;

(ii) the IC review applicant has failed to cooperate in progressing the IC review application, or the IC review, without reasonable excuse;

(iii) the Information Commissioner cannot contact the IC review applicant after making reasonable attempts; or

(b) the Information Commissioner is satisfied that the interests of the administration of this Act make it desirable that the IC reviewable decision be considered by the Tribunal; or

Note 1: The Information Commissioner may make a decision under this section to review only part of an IC reviewable decision (see section 54U).

Note 2: If the Information Commissioner makes a decision under paragraph (b), an application for review may be made to the Tribunal for review of the IC reviewable decision (see section 57A).

Note 3: Division 1 of Part VIII sets out the circumstances in which a vexatious applicant declaration may be made in relation to a person. A declaration may permit the Information Commissioner to refuse to consider an IC review application if the person makes the IC review application under this section without the written permission of the Information Commissioner.

54X Decision to review--notice requirement if discretion not to review exercised

(1) This section applies if the Information Commissioner decides not to undertake an IC review, or not to continue to undertake an IC review.

(2) The Information Commissioner must, as soon as practicable, notify the review parties of the decision in writing.

(3) The notice must:

(a) state the reasons for the Information Commissioner's decision; and

(b) if the Information Commissioner makes a decision under paragraph 54W(b)--state that an application for review of the relevant IC reviewable decision may be made to the Tribunal under section 57A.

Note: See section 57A for the time within which the application for review must be made to the Tribunal.

(4) However, the notice must not include:

(a) exempt matter; or

(b) information of the kind referred to in subsection 25(1).

Note: Subsection 25(1) deals with information about the existence or otherwise of certain documents.

54Y Decision to review--actual decisions made after IC review has commenced

(1) This section applies if:

(a) an agency or Minister has been taken to have made a decision (the deemed decision ) under subsection 15AC(3), 51DA(2) or 54D(2); and

(b) a person makes an IC review application for review of the deemed decision; and

(c) the Information Commissioner has not made a decision under section 54W (decision not to review) or 55K (decision on review) in relation to the deemed decision; and

(d) subsection 15AC(7), 51DA(6) or 54D(6) applies in relation to a decision (the actual decision ) made by the agency or Minister.

(2) The Information Commissioner must deal with the IC review application for review of the deemed decision as if it were an IC review application for the review of the actual decision, subject otherwise to this Part.

Note: When making the actual decision, a consultation requirement under section 26A (documents affecting Commonwealth‑State relations), 27 (business documents) or 27A (documents affecting personal privacy) may apply.

Division 6 -- Procedure in IC review

54Z Procedure in IC review--general notice requirement

Before undertaking an IC review, the Information Commissioner must inform:

(a) the person, agency or Minister who made the decision; or

(b) if the IC review application is made under section 54M (access grant decisions)--the person who made the request.

55 Procedure in IC review--general

(1) The Information Commissioner may, for the purposes of an IC review, review an IC reviewable decision by considering the documents or other material lodged with or provided to the Information Commissioner, and without holding a hearing, if:

(a) it appears to the Information Commissioner that the issues for determination on the IC review can be adequately determined in the absence of the review parties; and

(b) the Information Commissioner is satisfied that there are no unusual circumstances that would warrant the Information Commissioner holding a hearing; and

(2) The Information Commissioner may otherwise:

(a) conduct an IC review in whatever way he or she considers appropriate; and

(b) use any technique that the Information Commissioner considers appropriate to facilitate an agreed resolution of matters at issue in the IC review (for example by using techniques that are used in alternative dispute resolution processes); and

(d) obtain any information from any person, and make any inquiries, that he or she considers appropriate; and

(e) give written directions as to the procedure to be followed in relation to:

(i) IC reviews generally; or

(ii) a particular IC review.

Example 1: The Information Commissioner may allow a person under paragraph (2)(c) to participate in a hearing by telephone.

Example 2: The Information Commissioner may give written directions under subparagraph (2)(e)(ii) as to the procedure to be followed when dealing with confidential documents in a particular IC review.

(3) A direction given under paragraph (2)(e) is not a legislative instrument.

(4) Without limiting subsection (2), the Information Commissioner must, in relation to an IC review:

(a) conduct the IC review with as little formality and as little technicality as is possible given:

(i) the requirements of this Act; and

(ii) the requirements of any other law; and

(iii) a proper consideration of the matters before the Information Commissioner; and

(b) ensure that each review party is given a reasonable opportunity to present his or her case; and

(c) conduct the IC review in as timely a manner as is possible given the matters mentioned in subparagraphs (a)(i) to (iii).

(5) If the Information Commissioner holds a hearing, the Information Commissioner:

(a) must hold the hearing in public, unless the Information Commissioner is satisfied that it is not desirable to do so:

(i) because of the confidential nature of any evidence or matter relating to the proceeding; or

(ii) for any other reason; and

(b) is not bound by the rules of evidence; and

(c) may hold a part of the hearing in the absence of a review party (or a review party's representative) if it is necessary to do so to prevent disclosure to the review party (or the review party's representative) of any evidence or matter relating to the proceeding that is of a confidential nature.

55A Procedure in IC review--parties to proceeding

Who are the review parties?

(1) The parties to an IC review (the review parties ) are as follows:

(a) the IC review applicant;

(b) the principal officer of the agency, or the Minister, to whom the request was made;

(c) an affected third party (if any) required to be notified of the IC review application under section 54P (requirement to notify affected third parties);

(d) a party to the proceeding under subsection (3).

Note: For affected third party , see section 53C.

Application to become a review party

(2) If an IC review application is made in relation to an IC reviewable decision, a person whose interests are affected by the IC reviewable decision may apply, in writing, to the Information Commissioner to be a review party.

(3) The Information Commissioner may, by notice in writing, make a person who applies under subsection (2) an IC review party.

55B Procedure in IC review--application for hearing

(1) At any time during an IC review, a review party may apply to the Information Commissioner requesting that the Information Commissioner hold a hearing for the purposes of the IC review.

(2) The Information Commissioner must notify the other review parties of the application.

(3) The Information Commissioner must:

(a) give all review parties a reasonable opportunity to make submissions on the application; and

(b) decide whether or not to hold a hearing.

55C Procedure in IC review--representation

At the hearing of a proceeding before the Information Commissioner, a review party may:

(a) appear in person; or

(b) be represented by another person.

55D Procedure in IC review--onus

(1) Subject to subsection (2), in an IC review in relation to a request or an application under section 48, the agency or Minister concerned has the onus of establishing that:

(a) a decision given in respect of the request or application is justified; or

(b) the Information Commissioner should give a decision adverse to the IC review applicant.

(2) In an IC review of a decision for which an IC review application is made under section 54M (access grant decisions), the affected third party for the document in relation to which the decision was made has the onus of establishing that:

(a) a decision refusing the request is justified; or

(b) the Information Commissioner should give a decision adverse to the person who made the request.

Note: For affected third party , see section 53C.

55DA Decision‑maker must assist Information Commissioner

In an IC review, the agency or Minister who made the IC reviewable decision must use the agency's or the Minister's best endeavours to assist the Information Commissioner to make his or her decision in relation to the IC review.

55E Procedure in IC review--inadequate reasons from decision maker

(1) This section applies if:

(a) an IC review application is made in relation to an IC reviewable decision made by an agency or a Minister; and

(b) the agency or Minister was required to provide a statement of reasons under section 26 for the decision to the person who made the request; and

(i) no statement has been provided; or

(ii) the statement that has been provided is inadequate.

(2) The Information Commissioner may, by notice in writing, require the agency or Minister to provide an adequate statement of reasons as mentioned in subsection 26(1).

(3) If the Information Commissioner gives notice under subsection (2), the agency or Minister must provide the adequate statement of reasons to the IC review applicant and the Information Commissioner within:

(a) the period specified in the notice; or

(b) if no period is specified in the notice--28 days after the day the notice was given to the agency or Minister.

55F Procedure in IC review--review parties reach agreement

(1) This section applies if, at any stage of an IC review:

(a) the review parties reach agreement as to the terms of a decision on an IC review:

(i) on the IC review application; or

(ii) in relation to a part of the IC review application; or

(iii) in relation to a matter arising out of the IC review application; and

(b) the agreement is acceptable to all of the review parties; and

(c) the terms of the agreement are reduced to writing, signed by, or on behalf of, the review parties and given to the Information Commissioner; and

(d) the Information Commissioner is satisfied that a decision in those terms or consistent with those terms would be within the powers of the Information Commissioner.

(2) The Information Commissioner may, if satisfied that it is appropriate:

(a) in the case of an agreement as to the terms of a decision of the Information Commissioner on the IC review--make a decision in accordance with those terms without completing the IC review; or

(b) in the case of an agreement that relates to a part of the proceeding or a matter arising out of the proceeding--in the Information Commissioner's decision on the IC review, give effect to the terms of the agreement without completing the IC review with respect to the part.

55G Procedure in IC review--revocation or variation of access refusal decision

(1) An agency or Minister may vary (or set aside and substitute) an access refusal decision (the original decision ) in relation to a request or an application under section 48 at any time during an IC review of the access refusal decision if the variation or substitution (the revised decision ) would have an effect of:

(a) giving access to a document in accordance with the request; or

(b) relieving the IC review applicant from liability to pay a charge; or

Note: When making the revised decision, a consultation requirement under section 26A (documents affecting Commonwealth‑State relations), 27 (business documents) or 27A (documents affecting personal privacy) may apply.

(2) If an agency or Minister varies (or sets aside and substitutes) an access refusal decision under subsection (1):

(a) the agency or Minister must, in writing, notify the Information Commissioner as soon as practicable after the agency or Minister makes the variation or substitution; and

(b) the Information Commissioner must deal with the IC review application for review of the original decision as if it were an IC review application for the review of the varied or substituted decision, subject otherwise to this Part.

55H Procedure in IC review--reference of questions of law to Federal Court of Australia

(1) The Information Commissioner may, at any time during an IC review, refer a question of law arising in an IC review to the Federal Court of Australia for decision.

(2) The Information Commissioner may refer the question of law:

(a) on the application of a review party; or

(b) on the Information Commissioner's initiative.

(3) The Federal Court of Australia has jurisdiction to hear and determine a question of law referred to it.

(4) The jurisdiction of the Federal Court of Australia may be exercised by a single judge of the Court.

(5) If a question of law is referred, the Information Commissioner must not, for the purposes of the IC review:

(a) give a decision to which the question is relevant before the Federal Court of Australia makes a decision in relation to the reference; or

(b) proceed in a manner, or make a decision, that is inconsistent with the opinion of the Federal Court of Australia on the question.

55J Procedure in IC review--sending of documents to, and disclosure of documents by, the Federal Court of Australia

If a question of law is referred under section 55H:

(a) the Information Commissioner must cause all documents and information in the possession of the Information Commissioner that relate to the IC review and to the reference to be sent to the Federal Court of Australia; and

(b) at the conclusion of the proceeding before the Federal Court of Australia, the Court must cause the documents to be returned to the Information Commissioner.

Division 7 -- Decision on IC review

55K Decision on IC review--decision of Information Commissioner

(1) After undertaking an IC review, the Information Commissioner must make a decision in writing:

(a) affirming the IC reviewable decision; or

(b) varying the IC reviewable decision; or

(2) For the purposes of implementing a decision on an IC review, the Information Commissioner may perform the functions, and exercise the powers, of the person who made the IC reviewable decision.

(3) A decision of the Information Commissioner on an IC review has the same effect as a decision of the agency or Minister who made the IC reviewable decision.

Content of the decision

(4) A decision on an IC review must include the following:

(a) a statement of reasons for the decision;

(b) a statement of the rights of the review parties to apply to the Tribunal for review of the decision under section 57A.

(5) However, a decision on an IC review must not include:

(a) information of the kind referred to in subsection 25(1); or

(b) exempt matter.

Note: Subsection 25(1) deals with information about the existence or otherwise of certain documents.

Providing copy of decision

(6) The Information Commissioner must give a copy of a decision on an IC review to each review party.

Copy of decision prima facie evidence

(7) A document is prima facie evidence of a decision on an IC review if:

(a) the document purports to be a copy of the decision; and

(b) the document purports to be certified by, or on behalf of, the Information Commissioner to be a true copy of the decision.

Publication requirement

(8) The Information Commissioner must publish a decision on an IC review to members of the public generally.

55L Decision on IC review--no power to give access to exempt documents

(1) This section applies if it is established in proceedings on an IC review that a document is an exempt document.

(2) The Information Commissioner does not have power to decide that access to the document is to be given, so far as it contains exempt matter.

55M Decision on IC review--limitation on amending records

(1) The Information Commissioner may, in a decision under section 55K, make a decision that requires, or has the effect of requiring, that an amendment be made to a record that relates to a record of an opinion only if he or she is satisfied of either (or both) of the following:

(a) the opinion was based on a mistake of fact;

(b) the author of the opinion was biased, unqualified to form the opinion or acted improperly in conducting the factual inquiries that led to the formation of the opinion.

(2) The Information Commissioner must not, in a decision under section 55K, make a decision that requires, or has the effect of requiring, that an amendment be made to a record if he or she is satisfied of either of the following:

(a) the record is a record of a decision, under an enactment, by a court, tribunal, authority or person;

(b) the decision whether to amend the record involves the determination of a question that the person seeking amendment of the record is, or has been, entitled to have determined by the agency (on internal review), the Information Commissioner, a court or tribunal.

55N Decision on IC review--obligation to comply with decision

A principal officer of an agency or a Minister must comply with a decision of the Information Commissioner under section 55K on an IC review.

55P Decision on IC review--enforcement of decision against agency

(1) If the principal officer of an agency or a Minister fails to comply with section 55N, an application may be made to the Federal Court of Australia for an order directing the principal officer or Minister to comply.

(2) The application may be made by:

(a) the Information Commissioner; or

(b) the IC review applicant.

(3) The court may make any other orders that it thinks fit to secure compliance by the principal officer or the Minister.

(4) An application under subsection (1) may only be made if:

(a) the time has ended for making an application to the Tribunal under section 57A for review of the Information Commissioner's decision; and

(b) such an application is not made before the end of the time.

55Q Decision on IC review--correction of errors

(1) The Information Commissioner may correct an obvious error in a decision under section 55K of the Information Commissioner on an IC review.

Example: The following are examples of obvious errors:

(a) an obvious clerical or typographical error in the text of the decision or statement of reasons;

(b) an inconsistency between the decision and the statement of reasons.

(2) The Information Commissioner may correct an obvious error:

(a) on an application by a review party; or

(b) on the Information Commissioner's initiative.

Division 8 -- Information gathering powers

55R Information gathering powers--obliging production of information and documents

Scope

(1) This section applies if the Information Commissioner has reason to believe that a person has information, or a document, relevant to an IC review.

(2) This section applies subject to sections 55T (exempt documents generally) and 55U (particular exempt documents).

Notice to produce

(3) The Information Commissioner may, by written notice, require a person to, for the purposes of an IC review:

(a) give the Information Commissioner information of a kind specified by the notice; or

(b) produce to the Information Commissioner a document specified by the notice.

(4) The notice must:

(a) be in writing; and

(b) specify the place at which the person must comply with the notice; and

(i) within a specified period that is not less than 14 days after the day on which the person is given the notice; or

(ii) at a specified time that is not less than 14 days after the time at which the person is given the notice.

Offence for failure to comply

(5) A person commits an offence if:

(a) the person is subject to a requirement specified in a notice under subsection (3); and

(b) the person engages in conduct; and

Penalty for a contravention of this subsection: Imprisonment for 6 months.

Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

55S Information gathering powers--dealings with documents

What the Information Commissioner may do with documents

(1) The Information Commissioner may do any of the following in relation to any documents produced in accordance with a notice under subsection 55R(3):

(a) take possession of the documents;

(b) make copies of the documents;

(d) hold the documents for a period that is necessary for the purposes of the IC review.

Information Commissioner must permit access by those entitled

(2) For the purposes of an IC review, the Information Commissioner must permit a person to inspect a document that the person would be entitled to inspect if the document were not held by the Information Commissioner.

(3) The Information Commissioner must permit the person to inspect the document at any reasonable time.

55T Information gathering powers--production of exempt documents generally

Scope

(1) This section applies to an IC review of a decision in relation to a document if:

(a) the principal officer of an agency or a Minister claims that the document is an exempt document; and

(b) section 55U does not apply to the document.

Note: Section 55U deals with the production of documents that are claimed to be exempt documents under section 33 (national security etc.) or 34 (Cabinet documents).

Exempt document produced under obligation

(2) The Information Commissioner may, for the purposes of deciding whether the document is an exempt document, require the document to be produced.

(3) If the Information Commissioner is satisfied that the document is an exempt document, the Information Commissioner must return the document to the person by whom it was produced.

Production to determine whether access can be given to part of document

(4) The Information Commissioner may require the production of an exempt document for the purpose of determining whether it is practicable for an agency or a Minister to give access to an edited copy of the document.

(5) If the document is produced to the Information Commissioner (whether under this section or voluntarily), only the following persons may have access to the document, or to the contents of the document:

(a) the Information Commissioner;

(b) a member of the staff of the Information Commissioner in the course of the performance of his or her duties as a member of that staff.

55U Information gathering powers--production of national security and cabinet documents

(1) This section applies to an IC review of a decision in relation to a document that is claimed to be an exempt document under section 33 (national security documents) or 34 (cabinet documents).

(2) The Information Commissioner may only require the production of the document in accordance with this section.

(3) If the Information Commissioner is not satisfied by evidence on affidavit or otherwise that the document is an exempt document under section 33 or 34, the Information Commissioner may require the document to be produced for inspection by the Information Commissioner.

(4) If the Information Commissioner is satisfied that the document is an exempt document, the Information Commissioner must return the document to the person by whom it was produced without permitting a person to have access to the document or disclosing the contents of the document to a person, unless the person is:

(a) the Information Commissioner; or

(b) a member of the staff of the Information Commissioner in the course of the performance of his or her duties as a member of that staff; or

55V Information gathering powers--further searches for a document

(1) This section applies to an IC review in relation to a request for access to a document if:

(a) access to the document is refused under section 24A (document cannot be found etc.); or

(b) access is purportedly given to the document (amongst others to which the request relates), but is not actually given.

(2) The Information Commissioner may require the agency or Minister concerned to conduct further searches for the document.

55W Information gathering powers--obliging persons to appear

Notice to appear

(1) The Information Commissioner may, by written notice, require a person to appear before the Information Commissioner to answer questions for the purposes of an IC review.

(2) The notice must:

(a) be in writing; and

(b) state that the person must comply with the notice at a specified time that is not less than 14 days after the time at which the person is given the notice; and

Offence for failure to comply

(3) A person commits an offence if:

(a) the person is subject to a requirement specified in a notice under subsection (1); and

(b) the person engages in conduct; and

Penalty for a contravention of this subsection: 6 months imprisonment.

Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

55X Information gathering powers--administration of oath or affirmation

(1) If, by a notice under subsection 55W(1), the Information Commissioner requires a person to appear before him or her, the Information Commissioner may:

(a) administer an oath or affirmation to the person; and

(b) examine the person on oath or affirmation.

(2) The oath or affirmation to be taken or made by a person for the purposes of this section is an oath or affirmation that the answers the person will give will be true.

(3) A person commits an offence if:

(a) the person is required under this section to be examined on oath or affirmation; and

(b) the person engages in conduct; and

Penalty for a contravention of this subsection: 6 months imprisonment.

Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

55Y Information gathering powers--no loss of legal professional privilege

Information or a document does not cease to be the subject of legal professional privilege merely because it is given, provided, produced or referred to for the purposes of this Part.

55Z Information gathering powers--protection from liability

(1) This section applies if a person does any of the following in good faith for the purposes of an IC review:

(a) gives information;

(b) produces a document;

(2) If this section applies, then:

(a) civil proceedings do not lie against a person because the person does any of the matters mentioned in paragraphs (1)(a) to (c); and

(b) the person is not liable for a penalty under a provision of any law because the person does any of those matters.

(3) This section applies whether or not the person is required to do a thing mentioned in subsection (1) in accordance with this Division.

Division 9 -- Evidence by Inspector‑General of Intelligence and Security

55ZA Evidence by Inspector‑General of Intelligence and Security--scope

This Division applies in an IC review of a decision in relation to a document that is claimed to be an exempt document under section 33 (national security documents).

55ZB Evidence by Inspector‑General of Intelligence and Security--request to give evidence

(1) Before determining that a document is not an exempt document under section 33, the Information Commissioner must request the Inspector‑General of Intelligence and Security to appear personally and give evidence on:

(a) the damage that would, or could reasonably be expected to, be caused to:

(i) the security of the Commonwealth; or

(ii) the defence of the Commonwealth; or

(iii) the international relations of the Commonwealth;

if access to the document were given in accordance with the request; or

(b) whether giving access to the document in accordance with the request would divulge any information or matter communicated in confidence by, or on behalf of, a foreign government, an authority of a foreign government or an international organisation to the Government of the Commonwealth, to an authority of the Commonwealth or to a person receiving the communication on behalf of the Commonwealth or of an authority of the Commonwealth.

(2) Before determining that an agency or Minister must grant access to a copy of the document with deletions, the Information Commissioner must request the Inspector‑General to appear personally and give evidence on:

(a) the damage that would, or could reasonably be expected to, be caused to:

(i) the security of the Commonwealth; or

(ii) the defence of the Commonwealth; or

(iii) the international relations of the Commonwealth;

if the proposed deletions were not made; or

(b) whether giving access to the document without the proposed deletions would divulge any information or matter communicated in confidence by, or on behalf of, a foreign government, an authority of a foreign government or an international organisation to the Government of the Commonwealth, to an authority of the Commonwealth or to a person receiving the communication on behalf of the Commonwealth or of an authority of the Commonwealth.

(3) Before hearing the evidence of the Inspector‑General, the Information Commissioner must hear any evidence to be given or submissions to be made by, or on behalf of, the agency to which, or the Minister to whom, the request was made for access to the document.

(4) The Information Commissioner is not bound by any opinion of the Inspector‑General expressed while giving evidence under this Division.

55ZC Evidence by Inspector‑General of Intelligence and Security--compliance with request

The Inspector‑General of Intelligence and Security must comply with a request under section 55ZB unless, in the opinion of the Inspector‑General, the Inspector‑General is not appropriately qualified to give evidence on the matters in relation to which the Inspector‑General has been requested to give evidence.

55ZD Evidence by Inspector‑General of Intelligence and Security--procedural matters

(1) This section applies for the purposes of enabling the Inspector‑General of Intelligence and Security to comply with a request under section 55ZB.

(2) The Information Commissioner must allow the Inspector‑General to take possession of, and make copies of or take extracts from, any document given to the Information Commissioner for the purposes of the proceeding.

(3) The Inspector‑General may require the production of the following:

(a) the document that is claimed to be an exempt document under section 33 by the agency to which or the Minister to whom the request was made for access to the document;

(b) any document of an agency or official document of a Minister that relates to the document mentioned in subsection (2) by the agency or Minister.

(4) The Inspector‑General may make copies of, or take extracts from, the documents mentioned in subsection (3).

(5) After the period that is reasonably necessary for the purposes of giving evidence to the Information Commissioner, the Inspector‑General must:

(a) return the original of any document to the Information Commissioner or to the agency or Minister; and

(b) destroy any copies of or extracts taken from any document.

(6) The Inspector‑General must permit a person to inspect a document that the person would be entitled to inspect if the document were not held by the Inspector‑General.

(7) The Inspector‑General must permit the person to inspect the document at all reasonable times.

(8) The Information Commissioner must allow the Inspector‑General a period within which to consider the documents mentioned in subsections (2) to (4) that is reasonable having regard to:

(a) the nature of the evidence that the Inspector‑General has been requested to give; and

(b) the time required by the Inspector‑General to perform the Inspector‑General's other functions.

Division 10 -- Appeals

56 Appeals--appeals to Federal Court of Australia on questions of law

(1) A review party may appeal to the Federal Court of Australia, on a question of law, from a decision of the Information Commissioner on an IC review.

(2) An appeal under this section must be instituted:

(a) either:

(i) not later than 28 days after the day a decision under section 55K of the Information Commissioner on an IC review is given to the review party; or

(ii) within the further time that the Federal Court of Australia allows; and

(b) in any way that is prescribed by rules of court made under the Federal Court of Australia Act 1976 .

(3) The Federal Court of Australia has jurisdiction to hear and determine appeals instituted under this section .

(4) The jurisdiction of the Federal Court of Australia under subsection (3) includes jurisdiction to make findings of fact under section 56A.

(5) The Federal Court of Australia:

(a) must hear and determine the appeal; and

(b) may make any order or orders that it thinks appropriate by reason of its decision.

(6) Without limiting subsection (5), the orders that the Federal Court of Australia may make include the following:

(a) an order affirming the decision of the Information Commissioner;

(b) an order setting aside the decision of the Information Commissioner and making a decision in substitution for the decision;

(c) an order remitting the case to be considered and decided again by the Information Commissioner in accordance with the directions of the Court:

(i) with or without the holding of a hearing; and

(ii) with or without the hearing of further evidence.

56A Appeals--Federal Court of Australia may make findings of fact

(1) If a review party appeals to the Federal Court of Australia under section 56, the Court may make findings of fact if:

(a) the findings of fact are not inconsistent with findings of fact made by the Information Commissioner (other than findings made by the Information Commissioner as the result of an error of law); and

(b) it appears to the Court that it is convenient for the Court to make the findings of fact, having regard to all of the following:

(i) the extent (if any) to which it is necessary for facts to be found;

(ii) the means by which those facts might be established;

(iii) the expeditious and efficient resolution of the whole of the matter to which the IC review relates;

(iv) the relative expense to the parties of the Court, rather than the Information Commissioner, making the findings of fact;

(v) the relative delay to the parties of the Court, rather than the Information Commissioner, making the findings of fact;

(vi) whether any of the parties considers that it is appropriate for the Court, rather than the Information Commissioner, to make the findings of fact;

(vii) such other matters (if any) as the Court considers relevant.

(2) For the purposes of making findings of fact under subsection (1), the Federal Court of Australia may:

(a) have regard to the evidence given in the IC review; and

(b) receive further evidence.

(3) Subsection (2) does not limit the Federal Court of Australia's power under subsection 56(6) to make an order remitting the case to be heard and decided again by the Information Commissioner.

Part VIIA -- Review by the Tribunal

Division 1 -- Guide to this Part

57 Review by the Tribunal--guide

An application may be made to the Administrative Appeals Tribunal for the review of certain decisions (see section 57A).

Division 3 sets out the powers of the Tribunal in a review.

Division 4 deals with the procedure to be followed in a review by the Tribunal.

Division 5 deals with ensuring that exempt matter that comes before the Tribunal is protected from disclosure.

Division 6 deals with the circumstances in which the Tribunal may make recommendations as to costs.

Division 7 deals with the stay of decisions pending appeal to the Federal Court of Australia.

Division 2 -- Tribunal reviewable decisions

57A Tribunal reviewable decisions--which decisions are reviewable?

(1) An application may be made to the Tribunal for review of the following decisions:

(a) a decision of the Information Commissioner under section 55K on an IC review;

(b) if the Information Commissioner makes a decision under paragraph 54W(b) (matters inappropriate for IC review)--the IC reviewable decision in relation to which the Information Commissioner makes the decision.

Note 1: An application for the review of a decision may be made by a person whose interests are affected by the decision (see section 27 of the Administrative Appeals Tribunal Act 1975 ).

Note 2: Subsection 29(2) of the Administrative Appeals Tribunal Act 1975 sets out the time within which the application for review must be made.

Time for applying to Tribunal if Information Commissioner declines to review decision

(2) Despite subsection 29(2) of the Administrative Appeals Tribunal Act 1975 , for the purposes of paragraph 29(1)(d) of that Act, the prescribed time for a person to lodge an application for review of an IC reviewable decision mentioned in paragraph (1)(b) of this section is the period:

(a) starting on the day on which the decision by the Information Commissioner under paragraph 54W(b) of this Act is made; and

(b) ending on the 28th day after the day on which notice of the decision under paragraph 54W(b) was given to the person under section 54X of this Act.

Division 3 -- Powers of Tribunal

35 Subsection 58(7)

Repeal the subsection.

36 After section 58

Insert:

58A Powers of Tribunal--requiring further searches

(1) This section applies to a review on an application to the Tribunal under section 57A if:

(a) access to the document is refused under section 24A (document cannot be found etc.); or

(b) access is purportedly given to the document (amongst others to which the request relates), but is not actually given.

(2) For the purposes of the review, the Tribunal may require the agency or Minister concerned to conduct further searches for the document.

58AA Powers of Tribunal--limitation on amending records

(1) The Tribunal may, in a decision on an application to the Tribunal under section 57A, make a decision that requires, or that has the effect of requiring, that an amendment be made to a record that relates to a record of an opinion only if the Tribunal is satisfied of either (or both) of the following:

(a) the opinion was based on a mistake of fact;

(b) the author of the opinion was biased, unqualified to form the opinion or acted improperly in conducting the factual inquiries that led to the formation of the opinion.

(2) The Tribunal must not, in a decision on an application under section 57A, make a decision that requires, or that has the effect of requiring, that an amendment be made to a record if it is satisfied of either of the following:

(a) the record is a record of a decision, under an enactment, by a court, tribunal, authority or person;

37 Before section 58B

Insert:

Division 4 -- Procedure in Tribunal

38 Subsection 58B(1)

Omit "the review of a decision", substitute "review in relation to a decision".

39 Section 58D

After "of the majority", insert:

; and (c) in a case where 3 of those members are Deputy Presidents--be decided according to the opinion of the majority.

40 Sections 58F, 59 and 59A

Repeal the sections.

41 Section 60

Repeal the section, substitute:

60 Procedure in Tribunal--parties

(1) This section applies for the purposes of this Part and of the application of the Administrative Appeals Tribunal Act 1975 in relation to proceedings under this Part.

(2) A decision given by a person on behalf of an agency is taken to have been given by the agency.

(3) The parties to a proceeding before the Tribunal for a review of a decision are as follows:

(a) the person who applied to the Tribunal for a review of the decision under section 57A;

(b) the person who made the request or application in respect of which the decision was made;

(d) any other person who is made a party to the proceeding by the Tribunal under subsection 30(1A) of the Administrative Appeals Tribunal Act 1975 .

60AA Procedure in Tribunal--requirement to notify affected third parties

Scope

(1) This section applies if an application is made to the Tribunal under section 57A for the review of a decision not to give access to a document to which a consultation requirement applies under section 26A, 27 or 27A (whether the decision is made by the Information Commissioner, an agency or a Minister).

Requirement to notify

(2) The agency to which, or the Minister to whom, the request was made for access to the document must, as soon as practicable, take all reasonable steps to notify the affected third party for the document of the application to the Tribunal.

Note 1: For affected third party , see section 53C.

Note 2: Notice is not required to be given in certain circumstances (see section 60AB).

Note 3: The affected third party may apply to be made a party to the proceeding by the Tribunal under subsection 30(1A) of the Administrative Appeals Tribunal Act 1975 .

60AB Procedure in Tribunal--circumstances in which not giving notice is appropriate

(1) This section applies in relation to a document to which a consultation requirement applies under section 27 or 27A.

(2) An agency or Minister is not required to notify an affected third party for the document under subsection 60AA(2) if:

(a) the agency or the Minister applies to the Tribunal for an order that it would not be appropriate to notify the affected third party in the circumstances covered by subsection (3); and

(b) the Tribunal makes the order.

Note: For affected third party , see section 53C.

(3) The circumstances covered by this subsection are whether notifying the affected third party would, or could reasonably be expected to, do any of the following:

(a) prejudice the conduct of an investigation of a breach, or possible breach, of the law, or a failure, or possible failure, to comply with a law relating to taxation;

(b) prejudice the enforcement or proper administration of the law in a particular instance;

(d) endanger the life or physical safety of any person;

(e) cause damage to the security, defence or international relations of the Commonwealth.

42 Section 61

Repeal the section, substitute:

61 Onus

(1) In proceedings under this Part for review of a decision in relation to a request, or in relation to an application under section 48 (a personal records application ):

(a) if an agency or a Minister applied for the review--the agency or Minister has the onus of establishing that the decision is not justified, or that the Tribunal should give a decision adverse to the applicant in relation to the request or the personal records application; or

(b) if the applicant in relation to the request or the personal records application applied for the review--the agency to which, or the Minister to whom, the request or personal records application was made has the onus of establishing that the decision is justified, or that the Tribunal should give a decision adverse to the applicant.

(2) However, in proceedings under this Part that relate to a decision to give access to a document to which a consultation requirement applies under section 26A, 27 or 27A, an affected third party for the document in relation to which the decision was made has, if the affected third party is a party to the proceeding, the onus of establishing that:

(a) a decision refusing to give access to the document is justified; or

(b) the Tribunal should give a decision adverse to the person who made the relevant request.

Note: For affected third party , see section 53C.

61A Modification of the Administrative Appeals Tribunal Act 1975

(1) The Administrative Appeals Tribunal Act 1975 applies to proceedings under this Part in the way set out in the following table:

Modification of the Administrative Appeals Tribunal Act 1975
Item	A reference to ...	*in the following provision of the Administrative Appeals Tribunal Act 1975* :**	is taken to be a reference to ...
1	the person who made the decision	subsection 29(11) (notification of review application)	each of the review parties.
2	the person who made the decision	(a) subsection 33(1AA) (requirement to assist Tribunal); (b) paragraph 33(2A)(b) (procedural directions)	the agency or Minister who made the IC reviewable decision.
3	the person who made the decision that is the subject of the application for a review by the Tribunal	subsection 37(1) or (1AF) (lodging material with Tribunal)	the agency or Minister who made the IC reviewable decision.
4	the person who made the decision	subsection 37(1A) or (1B) (deadlines for lodging documents)	the agency or Minister who made the IC reviewable decision.
5	the person who made the decision to which the relevant proceeding relates	subsection 41(4) (stay of decisions being reviewed)	each of the review parties.
6	the person who made the decision	subsection 41(5) (stay of decisions being reviewed)	each of the review parties.
7	the person who made the decision	subsection 42A(2) (dismissal for failure to appear)	the agency or Minister who made the IC reviewable decision.
8	the person who made a decision	section 67A (giving of notices)	the person who made the decision or an agency.

(2) The agency or Minister who made the IC reviewable decision is taken to have complied with the obligation under paragraph 37(1)(a) of the Administrative Appeals Tribunal Act 1975 if the agency or Minister gives the AAT the number of copies prescribed by the regulations of the decision under section 55K in relation to which an application has been made to the Tribunal.

(3) Subsection (2) does not limit the powers of the Tribunal under section 38 of the Administrative Appeals Tribunal Act 1975 .

43 Before section 63

Insert:

Division 5 -- Protection of information in Tribunal

44 Before section 66

Insert:

Division 6 -- Recommendations as to costs

45 Paragraph 66(1)(a)

Repeal the paragraph, substitute:

(a) a person applies, under section 57A, to the Tribunal for review of a decision of the Information Commissioner on an IC review; and

46 Subsections 66(1) and (3)

Omit "Attorney‑General", substitute "responsible Minister".

47 Before section 67

Insert:

Division 7 -- Automatic stay of certain decisions

48 Paragraph 67(1)(a)

Omit "under section 55, to the Tribunal for review of a decision", substitute "under section 57A, to the Tribunal for review in relation to a decision".

49 Before Part VIII

Insert:

Part VIIB -- Investigations and complaints

Division 1 -- Guide to this Part

68 Investigations and complaints--guide

This Part is about investigations by the Information Commissioner and by the Ombudsman.

Division 2 sets up a system for investigations by the Information Commissioner.

The Information Commissioner may investigate an action taken by an agency in the performance of functions or the exercise of powers under this Act on a complaint from a person, or on the Information Commissioner's initiative.

If a person disputes the merits of an access refusal decision or an access grant decision, this Act provides elsewhere for the review of that decision (see Parts VI, VII and VIIA).

However, this does not prevent a person from making a complaint to the Information Commissioner about the way in which the agency has handled the decision.

The Information Commissioner has powers to obtain documents, to question persons and to enter premises (see Subdivision D of Division 2).

At the conclusion of the investigation, the Information Commissioner must give a notice to the complainant and to the respondent agency about the Information Commissioner's findings, with any recommendations that the Information Commissioner believes the agency ought to implement (see section 86).

If the Information Commissioner is not satisfied that the agency has taken adequate and appropriate action to implement the recommendations, the Information Commissioner may take further steps (see sections 89, 89A and 89B).

Division 3 deals with the investigation of complaints by the Ombudsman about action taken under this Act.

Division 2 -- Information Commissioner investigations

Subdivision A -- Power to investigate

69 Information Commissioner investigations--power to investigate

Obligation to investigate

(1) The Information Commissioner must, subject to this Division, investigate a complaint made under section 70.

Discretion to investigate

(2) The Information Commissioner may, at the Information Commissioner's initiative, investigate an action taken by an agency (the respondent agency ) in the performance of functions, or the exercise of powers, under this Act.

Subdivision B -- Making complaints

70 Information Commissioner investigations--making complaints

(1) A person (the complainant ) may complain to the Information Commissioner about an action taken by an agency in the performance of functions, or the exercise of powers, under this Act.

(2) A complaint must:

(a) be in writing; and

(b) identify the agency (also the respondent agency ) in respect of which the complaint is made.

(3) The Office of the Australian Information Commissioner must provide appropriate assistance to a person who:

(a) wishes to make a complaint; and

(b) requires assistance to formulate the complaint.

Subdivision C -- Decision to investigate

71 Information Commissioner investigations--interpretation

This Subdivision applies to a part of a complaint as if:

(a) a reference to a complaint were a reference to the part of the complaint; and

(b) a reference to an action were a reference to an action to which the part of the complaint relates.

72 Information Commissioner investigations--preliminary inquiries

The Information Commissioner may make inquiries of the respondent agency for the purpose of determining whether or not to investigate a complaint made (or purported to be made) under section 70.

73 Information Commissioner investigations--discretion not to investigate

The Information Commissioner may decide not to investigate, or not to continue to investigate, a complaint about an action made under section 70 if the Information Commissioner is satisfied of any of the following:

(a) that the action is not taken by an agency in the performance of the agency's functions or the exercise of the agency's powers under this Act;

(b) that:

(i) the complainant has or had a right to cause the action to be reviewed by the respondent agency, the Information Commissioner, a court or a tribunal; and

(ii) the complainant has not exercised, or did not exercise, the right; and

(iii) it would be, or would have been, reasonable for the complainant to exercise the right;

(i) the complainant has or had a right to complain about the action to another body; and

(ii) the complainant has not exercised, or did not exercise the right; and

(iii) it would be, or would have been, reasonable for the complainant to exercise the right;

(d) that the complainant has complained to the respondent agency, and the respondent agency:

(i) has dealt, or is dealing, adequately with the complaint; or

(ii) has not yet had an adequate opportunity to deal with the complaint;

(e) that the complaint is frivolous, vexatious, misconceived, lacking in substance or not made in good faith;

(f) that the complainant does not have a sufficient interest in the subject matter of the complaint.

Note: The Information Commissioner may make a decision under this section to investigate only part of a complaint (see section 71).

74 Information Commissioner investigations--transfer to Ombudsman

Scope

(1) This section applies if the Information Commissioner is satisfied that a complaint about an action could be more effectively or appropriately dealt with by the Ombudsman under the Ombudsman Act 1976 .

Example 1: A complaint about the way in which the Information Commissioner has dealt with an IC review.

Example 2: A complaint relates to an action under this Act, but is part of a complaint that relates to other matters that can be more appropriately dealt with by the Ombudsman.

Transfer of complaints to Ombudsman

(2) The Information Commissioner:

(a) must consult the Ombudsman about the complaint with a view to avoiding inquiries being conducted into that matter by both the Information Commissioner and the Ombudsman; and

(b) may decide not to investigate the action, or not to continue to investigate the action.

(3) If the Information Commissioner decides not to investigate, or not to continue to investigate, the action under paragraph (2)(b), the Information Commissioner must:

(a) transfer the complaint to the Ombudsman; and

(b) give the Ombudsman any information or documents that relate to the complaint in the possession, or under the control, of the Information Commissioner; and

(4) A notice under paragraph (3)(c) must state the reasons for the Information Commissioner's decision.

(5) A complaint transferred under subsection (3) is taken to be a complaint made to the Ombudsman under the Ombudsman Act 1976 .

Note: The Information Commissioner may make a decision under this section to investigate only part of a complaint (see section 71).

75 Information Commissioner investigations--notice requirements

Notice to respondent agency before commencing investigation

(1) Before beginning an investigation, the Information Commissioner must notify the respondent agency in writing.

Notice of decision not to investigate, or not to continue to investigate

(2) Subsection (3) applies if the Information Commissioner decides:

(a) not to investigate, or not to continue to investigate, a complaint made under section 70; or

(b) not to continue an investigation commenced at the Information Commissioner's initiative.

(3) The Information Commissioner must, as soon as practicable, notify the complainant (if any) and the respondent agency of the decision in writing.

(4) A notice under subsection (3) must state the reasons for the Information Commissioner's decision.

Subdivision D -- Investigation procedure

76 Information Commissioner investigations--conduct of investigation

(1) An investigation must be conducted in private and in a way the Information Commissioner thinks fit.

(2) For the purposes of an investigation, the Information Commissioner may obtain information from any officer of an agency, and make any inquiry, that he or she thinks is relevant to the investigation.

77 Information Commissioner investigations--general power to enter premises

(1) If a consenting person consents to entry under paragraph (2)(a), an authorised person may, at any reasonable time of day arranged with the consenting person:

(a) enter and remain at the place; or

(b) carry on the investigation at that place; or

Note: For consenting person , see subsection (3).

Authority to enter premises

(2) The authorised person may enter a place that:

(a) is occupied by an agency; or

(b) is occupied by a contracted service provider and used by the contracted service provider predominantly for the purposes of a Commonwealth contract.

(3) The authorised person may enter a place only if:

(a) consent to the entry has been given by the person (the consenting person ) who is:

(i) in the case of an agency--the principal officer of the agency; or

(ii) in the case of a contracted service provider--the person in charge (however described) of the contracted service provider; and

(b) before giving the consent, the authorised person informed the consenting person that he or she may refuse consent.

(4) The authorised person must leave the premises if the consenting person asks the authorised person to do so.

(5) This section is subject to section 78.

Who is an authorised person ?

(6) An authorised person is:

(a) an information officer (within the meaning of the Australian Information Commissioner Act 2010 ); or

(b) an APS employee who:

(i) is performing the duties of an Executive Level 2, or equivalent, position (or a higher position) in the Office of the Australian Information Commissioner; and

(ii) is authorised by the Information Commissioner for the purposes of this section.

78 Information Commissioner investigations--places for which approval required before entry

Specific places and areas

(1) Subsection (2) applies if an authorised person proposes to enter, or carry on an investigation, at any of the following:

(a) a place referred to in paragraph 80(c) of the Crimes Act 1914 ;

(b) a place that is a prohibited area for the purposes of the Defence (Special Undertakings) Act 1952 because of section 7 of that Act;

(c) an area of land or water or an area of land and water that is declared under section 14 of the Defence (Special Undertakings) Act 1952 to be a restricted area for the purposes of that Act.

(2) If this subsection applies, the authorised person must not enter, or carry on an investigation, unless:

(a) the Minister administering that Act, or another Minister acting for and on behalf of the Minister, has, in writing, approved the entry or carrying on of the investigation; and

(b) the authorised person complies with any conditions specified in the approval.

Places in respect of which Attorney‑General makes declaration

(3) The Attorney‑General may, by notice in writing to the Information Commissioner, declare a place to be a prohibited place if the Attorney‑General is satisfied that the carrying on of an investigation at the place might prejudice the security or defence of the Commonwealth.

(4) If a declaration under subsection (3) is in force, an authorised person must not enter, or carry on an investigation at, the prohibited place unless:

(a) a Minister specified in the declaration, or another Minister acting for and on behalf of the Minister, has, in writing, approved the entry or carrying on of the investigation; and

(b) the authorised person complies with any conditions specified in the approval.

79 Information Commissioner investigations--obliging production of information and documents

Scope

(1) This section applies if the Information Commissioner has reason to believe that a person has information, or a document, relevant to an investigation under this Part.

(2) This section applies subject to section 81 (production of exempt documents).

Notice to produce

(3) The Information Commissioner may, by written notice, require a person, for the purposes of the investigation:

(a) to give the Information Commissioner information of the kind referred to in the notice; or

(b) to produce to the Information Commissioner the document referred to in the notice.

(4) The notice must:

(a) be in writing; and

(b) specify the place at which the person must comply with the notice; and

(i) within a specified period that is not less than 14 days after the day on which the person is given the notice; or

(ii) at a specified time that is not less than 14 days after the time at which the person is given the notice.

Offence for failure to comply

(5) A person commits an offence if:

(a) the person is subject to a requirement specified in a notice under subsection (3); and

(b) the person engages in conduct; and

Penalty for a contravention of this subsection: Imprisonment for 6 months.

Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

80 Information Commissioner investigations--dealings with documents

What the Information Commissioner may do with documents

(1) The Information Commissioner may do one or more of the following with respect to any documents produced in accordance with a notice under subsection 79(3):

(a) take possession of the documents;

(b) make copies of the documents;

(d) hold the documents for a period that is necessary for the purposes of the investigation.

Information Commissioner must permit access by those entitled

(2) During an investigation the Information Commissioner must permit a person to inspect a document that the person would be entitled to inspect if the document were not held by the Information Commissioner.

(3) The Information Commissioner must permit the person to inspect the document at any reasonable time.

81 Information Commissioner investigations--exempt documents

Sections 55T and 55U apply to an investigation under this Part as if a reference in those sections to an IC review of a decision were a reference to an investigation of a complaint made under section 70.

Note: Sections 55T and 55U deal with access by the Information Commissioner to exempt documents.

82 Information Commissioner investigations--obliging persons to appear

Notice to require person to appear

(1) The Information Commissioner may, by written notice, require a person to appear before the Information Commissioner to answer questions for the purposes of an investigation.

(2) The notice must:

(a) be in writing; and

(b) state that the person must comply with the notice at a specified time that is not less than 14 days after the time at which the person is given the notice; and

Offence for failure to comply

(3) A person commits an offence if:

(a) the person is subject to a requirement specified in a notice under subsection (1); and

(b) the person engages in conduct; and

Penalty for a contravention of this subsection: 6 months imprisonment.

Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

83 Information Commissioner investigations--administration of oath or affirmation

(1) If, by a notice under subsection 82(1), the Information Commissioner requires a person to appear before him or her, the Information Commissioner may:

(a) administer an oath or affirmation to the person; and

(b) examine the person on oath or affirmation.

(2) The oath or affirmation to be taken or made by a person for the purposes of this section is an oath or affirmation that the answers the person will give will be true.

(3) A person commits an offence if:

(a) the person is required under this section to be examined on oath or affirmation; and

(b) the person engages in conduct; and

Penalty for a contravention of this subsection: 6 months imprisonment.

Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

84 Information Commissioner investigations--no loss of legal professional privilege

Information or a document does not cease to be the subject of legal professional privilege merely because it is given, provided, produced or referred to for the purposes of this Part.

85 Information Commissioner investigations--protection from liability

(1) This section applies if a person does any of the following in good faith for the purposes of an investigation:

(a) gives information;

(b) produces a document;

(2) If this section applies, then:

(a) civil proceedings do not lie against a person because the person does any of the matters mentioned in paragraphs (1)(a) to (c); and

(b) the person is not liable for a penalty under a provision of any law because the person does any of those matters.

(3) This section applies whether or not the person is required to do a thing mentioned in subsection (1) in accordance with this Division.

Subdivision E -- Outcome of investigation

86 Information Commissioner investigations--notice on completion

Requirement to notify respondent agency

(1) If the Information Commissioner completes an investigation, the Information Commissioner must, as soon as practicable, notify the respondent agency.

(2) The notice must state the following:

(a) the investigation results (see section 87);

(b) the investigation recommendations (if any) (see section 88);

(3) The respondent agency may give to the Information Commissioner any comments about the notice that the agency wishes to make.

Requirement to notify complainant (if any)

(4) The Information Commissioner must give a copy (or a copy prepared in accordance with subsection (5)) of the notice to the complainant (if any).

(5) However, if the copy of the notice would contain matters of the kind mentioned in subsection 89C(2), the Information Commissioner must prepare a copy of the report to give to the complainant that excludes those matters.

Note: Section 89D sets out further limitations on recommendations to amend records.

87 Information Commissioner investigations--what are the investigation results ?

The investigation results , in relation to the investigation, are the following:

(a) the matters that the Information Commissioner has investigated;

(b) any opinions that the Information Commissioner has formed in relation to those matters;

(d) any suggestions to the respondent agency the implementation of which the Information Commissioner believes might improve the processes of the agency;

(e) any other information of which the Information Commissioner believes the respondent agency ought to be aware.

88 Information Commissioner investigations--what are the investigation recommendations ?

The investigation recommendations , in relation to the investigation, are the formal recommendations to the respondent agency that the Information Commissioner believes that the respondent agency ought to implement.

89 Information Commissioner investigations--failure to implement investigation recommendation

Scope

(1) This section applies if:

(a) the Information Commissioner completes an investigation; and

(b) the Information Commissioner gives an agency a notice under section 86; and

(c) the Information Commissioner is not satisfied that the agency has taken action that is adequate and appropriate in the circumstances to implement the investigation recommendations for the investigation.

Giving implementation notices

(2) The Information Commissioner may, by notice in writing (an implementation notice ), require the respondent agency to:

(a) give to the Information Commissioner particulars of any action that the agency proposes to take to implement the investigation recommendations for the investigation; and

(b) give the particulars within the time specified in the notice.

(3) The respondent agency must comply with the implementation notice.

89A Information Commissioner investigations--failure to take action in response to implementation notice

Scope

(1) This section applies if:

(a) the Information Commissioner gives an implementation notice to a respondent agency; and

(b) the Information Commissioner is satisfied that:

(i) the agency has not responded to the implementation notice within the time specified in the notice; or

(ii) the agency has not taken action that is adequate and appropriate in the circumstances to implement the investigation recommendations for the investigation.

Report to responsible Minister

(2) The Information Commissioner may give a written report to the responsible Minister that contains the matters set out in section 89B.

Note: For responsible Minister , see subsection 4(1).

Report to Minister

(3) If the Information Commissioner gives a report to the responsible Minister under subsection (2), the Information Commissioner must give a copy (or a copy prepared in accordance with subsection (4)) of the report to the Minister (the FOI Minister ) responsible for the administration of this Act.

(4) However, if the copy of the report would contain matters of the kind mentioned in subsection 89C(2), the Information Commissioner must prepare a copy of the report to give to the FOI Minister that excludes those matters.

(5) The FOI Minister must cause the copy of the report to be laid before each House of the Parliament.

Note: Section 89D sets out further limitations on recommendations to amend records.

89B Information Commissioner investigations--requirements for report

A report under subsection 89A(2) must:

(a) include a copy of the notice given to the respondent agency under subsection 86(2) (notice on completion) and the implementation notice; and

(b) give details of the respondent agency's response (if any) to the implementation notice; and

(c) state that the Information Commissioner is not satisfied that the agency has taken action that is adequate and appropriate in the circumstances to implement the investigation recommendations for the investigation; and

(d) state the action that the Information Commissioner believes, if taken by the agency, would be adequate and appropriate in the circumstances to implement the investigation recommendations for the investigation.

89C Information Commissioner investigations--ensuring non‑disclosure of certain matters

(1) This section applies to the following documents:

(a) a notice to a complainant under section 86 (notice on completion);

(b) a report to the FOI Minister under subsection 89A(3) (failure to take action).

(2) The Information Commissioner must not include in the document:

(a) exempt matter; or

(b) information of the kind referred to in subsection 25(1).

Note: Subsection 25(1) deals with information about the existence or otherwise of certain documents.

89D Information Commissioner investigations--limitation on amending records

Scope

(1) This section applies to the following documents:

(a) a notice to a complainant under section 86 (notice on completion);

(b) a report to the FOI Minister under subsection 89A(3) (failure to take action).

Restrictions on amendments

(2) The Information Commissioner may, in the document, recommend that an amendment be made to a record that relates to a record of an opinion only if he or she is satisfied of either (or both) of the following:

(a) the opinion was based on a mistake of fact;

(b) the author of the opinion was biased, unqualified to form the opinion or acted improperly in conducting the factual inquiries that led to the formation of the opinion.

(3) The Information Commissioner must not, in the document, recommend that an amendment be made to a record if he or she is satisfied of either of the following:

(a) the record is a record of a decision, under an enactment, by a court, tribunal, authority or person;

89E Information Commissioner investigations--protection from civil action

(1) Civil proceedings do not lie against a person in respect of loss, damage or injury of any kind suffered by another person because the first‑mentioned person complains about an action under section 70.

(2) Subsection (1) only applies if the complaint is made in good faith.

Division 3 -- Complaints to Ombudsman

89F Complaints to Ombudsman--powers not affected

This Part does not prevent the Ombudsman from exercising powers or performing functions under the Ombudsman Act 1976 in accordance with that Act.

89G Complaints to Ombudsman--report must not contain certain information

A report under subsection 12(3) or section 15 or 17 of the Ombudsman Act 1976 in relation to an action taken under this Act must not include:

(a) exempt matter; or

(b) information of the kind referred to in subsection 25(1).

Note: Subsection 25(1) deals with information about the existence or otherwise of certain documents.

89H Complaints to Ombudsman--certain rights not affected by certificates

(1) This section applies if:

(a) the Ombudsman has commenced an investigation of a decision made under this Act not to grant a request for access to a document; and

(b) the Attorney‑General furnishes a certificate to the Ombudsman under paragraph 9(3)(a), (c) or (d) of the Ombudsman Act 1976 in relation to that investigation.

(2) The certificate does not affect the Ombudsman's right to:

(a) seek from any person the reasons for a decision made under this Act not to give access to an exempt document; or

(b) require any person to give any information or to answer any questions concerning the decision.

89J Complaints to Ombudsman--limitation on amending records in reports under the Ombudsman Act 1976

(1) The Ombudsman may, in a report under section 15 of the Ombudsman Act 1976 , recommend that an amendment be made to a record that relates to a record of an opinion only if he or she is satisfied of either (or both) of the following:

(a) the opinion was based on a mistake of fact;

(b) the author of the opinion was biased, unqualified to form the opinion or acted improperly in conducting the factual inquiries that led to the formation of the opinion.

(2) The Ombudsman must not, in a report under section 15 of the Ombudsman Act 1976 , recommend that an amendment be made to a record if he or she is satisfied of either of the following:

(a) the record is a record of a decision, under an enactment, by a court, tribunal, authority or person;

(b) the decision whether to amend the record involves determination of a question that the person seeking amendment of the record is, or has been, entitled to have determined by the agency (on internal review), the Information Commissioner, a court or tribunal.

50 Before section 91

Insert:

Division 1 -- Vexatious applicants

89K Vexatious applicants--declaration

(1) The Information Commissioner may, by written instrument (a vexatious applicant declaration ), declare a person to be a vexatious applicant.

Note 1: Section 89L sets out the grounds on which a declaration may be made.

Note 2: For variation and revocation of the instrument, see subsection 33(3) of the Acts Interpretation Act 1901 .

(2) The Information Commissioner may make a declaration:

(a) on the application of an agency or Minister; or

(b) on the Information Commissioner's initiative.

(3) If an agency or Minister has applied for a declaration, the agency or Minister has the onus of establishing that the Information Commissioner should make the declaration.

(4) The Information Commissioner must, as soon as practicable, give written notice to the person in relation to whom the vexatious applicant declaration is made.

89L Vexatious applicants--grounds for declaration

(1) The Information Commissioner may make a vexatious applicant declaration in relation to a person only if the Information Commissioner is satisfied of any of the following:

(a) that:

(i) the person has repeatedly engaged in access actions; and

(ii) the repeated engagement involves an abuse of the process for the access action;

(b) a particular access action in which the person engages involves, or would involve, an abuse of the process for that access action;

(2) A person engages in an access action if the person does any of the following:

(a) makes a request;

(b) makes an application under section 48;

(d) makes an IC review application.

(3) The Information Commissioner must not make a declaration in relation to a person without giving the person an opportunity to make written or oral submissions.

(4) In this section:

"abuse of the process for an access action" includes, but is not limited to, the following:

(a) harassing or intimidating an individual or an employee of an agency;

(b) unreasonably interfering with the operations of an agency;

(c) seeking to use the Act for the purpose of circumventing restrictions on access to a document (or documents) imposed by a court.

89M Vexatious applicants--effect of declaration

(1) A vexatious applicant declaration has effect in accordance with the terms and conditions stated in the declaration.

(2) Without limiting subsection (1), a vexatious applicant declaration in relation to a person may provide that:

(a) an agency or Minister may refuse to consider any of the following if made by the person without the written permission of the Information Commissioner:

(i) a request;

(ii) an application under section 48 (amendment of records);

(iii) an application for internal review; and

(b) the Information Commissioner may refuse to consider an IC review application made by the person.

(3) If a decision is made as mentioned in subsection (2), the agency, Minister or the Information Commissioner (as the case requires) must, as soon as practicable, notify the vexatious applicant of the decision.

89N Vexatious applicants--review by Tribunal

An application may be made to the Tribunal for a review of a decision under section 89K of the Information Commissioner to make a vexatious applicant declaration.

Note 1: An application for the review of a decision may be made by a person whose interests are affected by the decision (see section 27 of the Administrative Appeals Tribunal Act 1975 ).

Note 2: Subsection 29(2) of the Administrative Appeals Tribunal Act 1975 sets out the time within which the application for review must be made.

Note 3: Section 30 of the Administrative Appeals Tribunal Act 1975 sets out who the parties are to a proceeding before the Tribunal.

Division 2 -- General

89P Staff to hold appropriate security clearance

The Information Commissioner must take all reasonable steps to ensure that a member of the staff of the Office of the Australian Information Commissioner who performs functions or exercises powers for the purposes of this Act is given a security clearance at an appropriate level.

Note: Security clearances are given in accordance with the Australian Government Protective Security Manual.

90 Protection against civil liability--general

(1) No action for defamation, breach of confidence or infringement of copyright lies against the Commonwealth, a Minister, an agency or an officer of an agency because the Minister, or an officer of the agency:

(a) publishes a document in good faith, in the belief that the publication is required or permitted under Part II (information publication scheme) or section 11C (publication of information in accessed documents); or

(b) gives access to a document in good faith, in the belief that the access is required or permitted to be given in response to a request; or

(c) publishes, or gives access to, a document in good faith, in the belief that the publication or access is required or permitted otherwise than under this Act (whether or not under an express legislative power).

(2) No action for defamation, or breach of confidence, in respect of the publication of a document covered by subsection (3), lies against a person (including the author of the document) because the person supplied the document to a Minister or an agency.

(3) The publication of a document is covered by this subsection if:

(a) it is published as mentioned in paragraph (1)(a) or (c); or

(b) its publication is involved in, or results from, the giving of access to the document (or another document) as mentioned in paragraph (1)(b) or (c).

51 Subsection 91(1)

Repeal the subsection.

Note: The heading to section 91 is replaced by the heading " Protection against civil liability--particular situations ".

52 Subsection 91(1A)

Omit "Subsection (1)", substitute "Section 90".

53 Paragraph 91(1C)(a)

Omit "26A(1)", substitute "26A(2)".

54 Paragraph 91(1C)(b)

Omit "27(1)", substitute "27(4)".

55 Paragraph 91(1C)(c)

Omit "27A(1)", substitute "27A(3)".

56 Section 92

Repeal the section, substitute:

92 Protection against criminal liability

(1) A Minister, or an officer of an agency, is not guilty of a criminal offence only because the Minister or officer:

(b) gives access to a document in good faith, in the belief that the access is required or permitted to be given in response to a request; or

(2) A person is not guilty of a criminal offence only because the person shows a document, or is concerned in the showing of a document, to another person or organisation for any of the following purposes:

(a) consultation with a State under subsection 26A(2);

(b) enabling the other person or the organisation to make a submission under subsection 27(4);

57 Section 93

Repeal the section, substitute:

93 Agencies to provide information to Information Commissioner

(1) This section applies to:

(a) an agency, in relation to documents of the agency; and

(b) each Minister, in relation to his or her official documents.

(2) The agency or Minister must give to the Information Commissioner the information that the Information Commissioner requires to prepare reports under section 30 of the Australian Information Commissioner Act 2010 .

(3) The agency or Minister must comply with any requirements prescribed by the regulations regarding:

(a) the giving of the information; and

(b) the keeping of records for the purposes of this section.

93A Guidelines

(1) The Information Commissioner may, by instrument in writing, issue guidelines for the purposes of this Act.

Note: For variation and revocation of the instrument, see subsection 33(3) of the Acts Interpretation Act 1901 .

(2) For the purposes of the performance of a function, or the exercise of a power, under this Act, regard must be had to any guidelines issued by the Information Commissioner under this section including, but not limited to, guidelines issued for the purposes of the following provisions:

(a) paragraph 9A(b) (information publication scheme);

(b) subsection 11B(5) (public interest factors);

(3) Guidelines are not legislative instruments.

93B Review of operation of Act

(1) The Minister must cause a review of the operation of this Act to be undertaken.

(2) The review must:

(a) start 2 years after the commencement of this section; and

(b) be completed within 6 months.

Note: This section commences immediately after the commencement of section 3 of the Australian Information Commissioner Act 2010 .

(3) The Minister must cause a written report about the review to be prepared.

(4) The Minister must cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of that House after the Minister receives the report.

Part 2 -- Other amendments

Ombudsman Act 1976

59 Subsections 6(4A) to (4C)

Repeal the subsections.

60 After section 6B

Insert:

6C Transfer of complaints to Information Commissioner

Scope

(1) This section applies if the Ombudsman is satisfied of either of the following:

(a) that:

(i) a complainant has complained, or could complain, to the Information Commissioner about an action taken by a Department or prescribed authority under Part V of the Privacy Act 1988 or Part VIIB of the Freedom of Information Act 1982 ; and

(ii) the action could be more appropriately or effectively dealt with by the Information Commissioner;

(b) a complaint about an action taken by a Department or prescribed authority has been the subject of a completed investigation by the Information Commissioner under Part V of the Privacy Act 1988 or Part VIIB of the Freedom of Information Act 1982 .

Requirement to consult with Information Commissioner

(2) The Ombudsman:

(a) must consult the Information Commissioner about the complaint with a view to avoid inquiries being conducted into that matter by both the Information Commissioner and the Ombudsman; and

(b) may decide not to investigate the action, or not to continue to investigate the action.

Transfer to Information Commissioner

(3) If the Ombudsman decides not to investigate, or not to continue to investigate, an action under paragraph (2)(b), the Ombudsman must:

(a) transfer the complaint to the Information Commissioner; and

(b) notify the complainant in writing that the complaint has been transferred; and

(c) give the Information Commissioner any information or documents that relate to the complaint in the possession, or under the control of, the Ombudsman.

(4) A complaint transferred under subsection (3) is taken to be a complaint made to the Information Commissioner under Part V of the Privacy Act 1988 or Part VIIB of the Freedom of Information Act 1982 , as the case requires.

61 Subsection 19(4)

Omit "paragraph (1)(a) or under subsection (2)", substitute "subsection (1) or (2)".

62 Subparagraph 19R(3)(b)(iii)

Omit "(4A)", substitute "(4D)".

63 Subsection 19R(4) (table item 4, column 2)

Omit "6(4A)(e) or (4D)(e)", substitute "6(4D)(e)".

64 Subsection 35(6A)

Omit "6(4A)(e) or (4D)(e)", substitute "6(4D)(e)".

Part 3 -- Application and transitional provisions

65 Application--Part 1

Internal review and IC review

(1) An amendment made by an item in Part 1 (other than an amendment covered by subitem (2), (3) or (4)) applies in relation to the following:

(a) requests for access made under section 15 of the Freedom of Information 1982 that are received at or after the commencement of that item;

(b) applications under section 48 of that Act that are received at or after the commencement of that item.

Tribunal review

(2) The amendments made by items 44 and 46 apply in relation to applications to the Tribunal under section 57A of the Freedom of Information Act 1982 (as amended by this Act) made at or after the commencement of those items.

Investigation by the Information Commissioner

(3) The amendments made by item 49 to insert new Part VIIB of the Freedom of Information Act 1982 apply in relation to action taken by an agency (within the meaning of the Freedom of Information Act 1982 , as amended by this Schedule) before, at or after the commencement of that item.

Indemnity amendments

(4) The following amendments apply in relation to the publication of, or the giving of access to, a document at or after the commencement of those amendments:

(a) the amendment made by item 50 to insert new section 90 of the Freedom of Information Act 1982 ;

(b) the amendments made by items 51, 52 and 56.

66 Application--Part 2

The amendments made by Part 2 apply in relation to a complaint made to the Ombudsman under the Ombudsman Act 1976 at or after the commencement of that Part (whether or not the action to which the complaint relates was taken before, at or after that commencement).

67 Savings--complaints on foot continue under old law

(1) This item applies if:

(a) before the commencement of Part 2, a complaint is made to the Ombudsman under the Ombudsman Act 1976 ; and

(b) at the commencement of that Part, the Ombudsman has not informed the complainant of the result of the complaint under section 12 of that Act.

(2) Despite the amendments made to the Ombudsman Act 1976 by Part 2, the Ombudsman must continue to deal with the complaint under the Ombudsman Act 1976 as if those amendments had not been made.

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FREEDOM OF INFORMATION AMENDMENT (REFORM) ACT 2010 (NO. 51, 2010) - SCHEDULE 4 Information Commissioner amendments